February 2019

Brexit made simple

I know, I know, you’re sick to the back teeth of Brexit, just like the rest of us.

However, I’m willing to bet that there’s a good chance that you’d love to know what’s going on with it all, and why this “backstop” is so controversial, without a politician putting their spin on it to further their own agenda.

And with that in mind, I bring you our next “behind the news” article.

What you probably know is that the United Kingdom has triggered “Article 50”.

And here’s what Article 50 actually is:

Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.

A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.

The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.

For the purposes of paragraphs 2 and 3, the member of the European Council or of the Council representing the withdrawing Member State shall not participate in the discussions of the European Council or Council or in decisions concerning it. A qualified majority shall be defined in accordance with Article 238(3)(b) of the Treaty on the Functioning of the European Union.

If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure referred to in Article 49.

What does it mean?

In international law the treaty says the EU must negotiate and conclude a withdrawal agreement with the UK which sets “…out the arrangements for its withdrawal, taking account of the framework for its future relationship” (see 50(2) just above).

In other words the agreement must:

Say how withdrawal is going to work;

Give a framework for the UK-EU relationship after withdrawal.

Article 50 allows two years for negotiation and conclusion of the withdrawal agreement.

For the UK this period started on 29 March 2017 when the government gave the European Council a letter notifying the UK’s intention to withdraw from the EU.

What happens if they don’t conclude an agreement within two years?

If the UK and the EU do not conclude a withdrawal agreement by 29 March 2019 (two years after the UK gave the Article 50 letter), the UK will leave the EU without an agreement at 11.00 pm (UK time) on 29 March 2019.

This can only be stopped by:

a) an Act of Parliament delaying the exit; and

b) the European Council (acting unanimously) agreeing to extend the two-year period.

The Withdrawal Agreement

This covers many matters but the most important may be:

a) the Transition period: (Article 126) the duration of the transition period, which will start on the 30 March 2019 and end on 31 December 2020;

b) during this period for the most part EU law will be “applicable to and in” the UK;

c) all the benefits (depending on your point of view) of EU membership will continue such as continued participation in the EU customs union and single market;

d) The “backstop”.

The terms “backstop” means the Northern Ireland “Protocol” contained in the Withdrawal Agreement.

Article 6(1) of the Protocol establishes a single customs territory between the EU and the UK (including Northern Ireland) from the end of the transition period (or any extension of it) until the future UK-EU relationship has been negotiated.

This means that if no final agreement has been agreed between the EU and the UK by the end of the transition period the whole of the UK will enter a “single customs territory” with the EU so there are no tariffs on trade in goods between the UK and the EU.

Northern Ireland will also remain aligned to some extra rules of the EU’s single market which will mean checks on goods entering Northern Ireland from the rest of the UK.

The UK cannot exit the Protocol unless it agrees a final agreement with the EU. The advice of the Attorney General includes:

a) The withdrawal agreement does not provide for a mechanism that allows the UK lawfully to exit the customs union without a subsequent agreement;

b) In international law, the agreement would endure indefinitely until a superseding agreement replaced it;

c) the agreement means the UK cannot compel the EU to conclude a superseding agreement.

d) This isn’t a conclusive statement, but he does not think Article 50 provides an adequate legal basis in EU law for the agreement to continue beyond 2 years.

If the House of Commons does not pass the Resolution (with the vote being delayed there are clearly some major issues) then it must make a written statement setting out how it proposes to proceed, followed by arrangements for motions in both Houses in response to that statement.

(Parliament says:

A motion is a proposal put forward for debate or decision in the House of Commons or House of Lords. A motion must be proposed (moved) before any debate or vote can take place in Parliament.